刑事檢控科各律師/高級律 - Department of Justice

To : All Counsel/Senior Law Clerks/Prosecutions 

All Court Prosecutors/Magistracies 

致 : 刑事檢控科各律師 / 高級律政書記 

裁判法院各法庭檢控主任 

A Publication of the Prosecutions Division 

of the Department of Justice 

律政司刑事檢控科出版的刊物 

General Editor 

總編輯 

I Grenville Cross, SC 

江樂士資深大律師 

CRIMINAL APPEALS BULLETIN 

刑事上訴案判例簡訊 

June Edition/2004 

2004 年 6 月號 

Associate Editors 

副編輯 

D G Saw, SC 

邵德煒資深大律師 

Patrick W S Cheung 

張維新 

Assistant Editors 

助理編輯 

Denise F S Chan 

陳鳳珊 

Lily S L Wong 

王詩麗 

Vinci W S Lam 

林穎茜 

This Bulletin summarises recent judgments which the editors consider of significance. 

本簡訊輯錄近期上訴案件中各編輯認為重要判詞的摘要。 

( * Denotes Government Counsel 

( * 代表政府律師 

# Denotes Appellant’s/Applicant’s/Respondent’s Counsel) 

# 代表上訴人 / 申請人 / 答辯人的律師 )

2 

c.c. 

副本送 : 

e mail 

電郵送 : 

SJ 

律政司司長 

DDPPs 

各副刑事檢控專員 

LOs 

各律政專員 

D of AD 

律政司政務專員 

DSG 

副法律政策專員 

Secretary, Law Reform Commission 

法律改革委員會秘書 

Editor/Hong Kong Law Reports & Digest 

《香港法律匯報與摘錄》編輯 

DLA 

法律援助署署長 

Bar Association (Attn : Administrative Secretary) 

香港大律師公會行政秘書 

Law Society (Attn : Secretary General) 

香港律師會秘書長 

Editor/Hong Kong Cases 

Hong Kong Cases 編輯 

Faculty of Law, HKU (Attn : Dean of Faculty) 

香港大學法律學院院長 

Librarian (Law), City University 

香港城市大學高級助理圖書館館長 ( 法律組 ) 

PHQ/HKPF (Attn : ACP/Crime) 

香港警務處警察總部警務處助理處長 ( 刑事 ) 

ICAC (Attn : Head/Ops) 

廉政公署執行處首長 

PTS/HKPF (Attn : FTO(Exam)) 

香港警務處警察訓練學校警察訓練主任 ( 考試 ) 

Administrator/Duty Lawyer Service 

當值律師服務總幹事 

C & E Training Development Group (Attn : Staff Officer) 

香港海關訓練發展課參事 

C & E Prosecution Group (Attn : Superintendent) 

香港海關檢控課監督 

LegCo Secretariat (Legal Service Division) 

立法會秘書處法律事務部 

D of Imm (Attn : AD(EL)) 

入境事務處助理處長 ( 執法及聯絡 ) 

Judiciary (PM/JISS Project) 

司法機構資訊系統策略計劃策略經理 

Librarian/D of J 

律政司圖書館館長 

Director of Advanced Legal Education 

法律專業進修總監 

Hung On-to Memorial Library (HK Collection)/HKU 

香港大學孔安道紀念圖書館 ( 特藏部 ) 

Departmental Prosecution Sections 

各部門的檢控組

3 

INDEX 

目錄 

A p. 4 - p. 17 

第 4 至 17 頁 

B. p. 18 - p. 22 

第 18 至 22 頁 

C p. 23 - p. 29 

第 23 至 29 頁 

D. p. 30 - p. 38 

第 30 至 38 頁 

E. p. 39 - p. 43 

第 39 至 43 頁 

F. p. 44 - p. 45 

第 44 至 45 頁 

G. p. 46 

第 46 頁 

Appeal By Way of Case Stated 

以案件呈述方式提出的上訴 

Criminal Appeals/Against Conviction 

刑事上訴案件 / 針對定罪 

Criminal Appeals/Against Sentence 

刑事上訴案件 / 針對刑罰 

Magistracy Appeals/Against Conviction 

裁判法院上訴案件 / 針對定罪 

Magistracy Appeals/Against Sentence 

裁判法院上訴案件 / 針對刑罰 

Costs in Criminal Cases 

刑事案件的訟費 

Practice and Procedure 

常規與程序

4 

Appeal No. 

(Date of Case Significance 

Judgment) Title 

A. APPEALS BY WAY OF CASE STATED 

以案件呈述方式提出的上訴 

香港特別行政區訴古思堯及另一人 

HKSAR v KOO Sze-yiu and Another 

高等法院原訟法庭 – 高院裁判法院上訴 2003 年第 1270 號 

* 張維新 

Cheung Waisun 

李鏡鏞 

Robert KY Lee 

# 答辯人自辯 

I/P 

高等法院原訟法庭法官湯寶臣 

聆訊日期 : 二零零四年五月十八日 

宣判日期 : 二零零四年六月二十八日 

COURT OF FIRST INSTANCE OF THE HIGH COURT 

MAGISTRACY APPEAL NO. 1270 OF 2003 

Date of Hearing: 18 May 2004 

Date of Judgment: 28 June 2004 

擾亂致令立法會會議程序中斷 – 香港法例第 382 章 

立法會 ( 權力及特權 ) 條例第 17(c) 條 – 適用對象 – 

跟隨先例的概念 – 條例中第 8 條和第 17(c) 條的最高 

刑罰的分別 

兩位答辯人共同被控一項控罪 , 指他們於 2003 

年 2 月 26 日 , 在立法會大樓內 , 正當立法會舉行會 

議時 , 引起擾亂 , 致令立法會的會議程序中斷 , 違 

反香港法例第 382 章 ,《立法會 ( 權力及特權 ) 條 

例》第 17(c) 條。 

他們否認控罪。在審訊及聽取過陳詞後 , 裁判 

官裁定罪名不成立 , 並將控罪撤銷。裁判官在判詞 

中指出合適的控罪應該是同一法例中的第 8 條及第 

20 條而不是第 17(c) 條。但裁判官拒絕引用香港法 

例第 227 章《裁判官條例》第 27 條所賦予他的權力 

去將控罪修改為第 8 條。上訴人不服這個裁決 , 並 

依據《裁判官條例》第 105 條就裁決所涉及的法律

5 

問題以「案件呈述」方式向原訟法庭提出上訴。 

控辯雙方在證據方面無太大爭議。裁判官裁定 

上訴人已證明了下列的基本事實 : 

(1) 在 2003 年 2 月 26 日下午約 5 時 30 分 , 立 

法會在中環昃臣道 8 號的立法會大樓內 

正進行《國家安全 ( 立法條文 ) 條例草 

案》的首讀和二讀程序。當前保安局 

局長 ( 葉劉淑儀女士 ) 準備就上述條例 

草案動議二讀發言時 , 一批立法會議 

員站立抗議並離場。這時候有人從立 

法會大樓內的 2 號公眾席上把紙碎拋下 

會議廳。第一和第二答辯人亦從 2 號公 

眾席的座位站起來高叫口號 ( 反對 23 條 

立法和收回藍紙草案 )。第二答辯人亦 

試圖張開一幅黑布橫額 ; 

(2) 立法會保安人員隨即上前阻止兩位答 

辯人 , 並勸喻兩人肅靜及返回座位。 

但兩位答辯人仍然不斷大叫口號及手 

握欄杆 , 保安員於是強行把兩人帶離 

公眾席。期間兩人與保安人員發生糾 

纏。立法會的會議因此被中斷近兩分 

鐘。在兩人被帶走後 , 立法會的會議 

才可繼續進行。 

裁判官認為第 17(c) 條祇是規範被立法會或任 

何委員會命令到立法會作證的人士 , 其他出現在會 

議廳的公眾人士之行為則祇是由第 8 條及相關的附 

例所規管。裁判官指出答辯人既然不是被傳召的人 

士 , 所以他們的行為祇受第 8 條及有關行政指令規 

限 , 裁判官認為控方是選錯控罪。 

裁判官有留意到胡國興法官曾處理一宗同類型 

的案件 , 即香港特別行政區訴梁國雄 (HCMA 

561/1999)。而在該案中 , 胡法官裁定第 17(c) 條是 

恰當的控罪。雖然有此先例 , 裁判官以以下的理據 

拒絕跟隨 :

6 

… 儘管該案的案情與本案有相似之處 , 但 

本席發覺在上訴的過程中 , 法庭從沒有提 

及第 8 條及其附例。本席認為可能由於控 

辯雙方在討論過程中 , 都忽略了第 8 條及 

其附例的存在和適用性 , 因而法庭亦被誤 

導及忽略了第 8 條及其附例的存在 , 所以 

該案例對於第 17 條 (c) 款是否才是合適的 

控罪這一點 , 不能視作權威性的案例。 

有關修改控罪方面 , 裁判官認為鑑於第 17(c) 

條和第 8 條無論在性質和規管範圍都完全不同 , 其 

差異屬關鍵性 , 如果到了裁決階段才去修改控罪是 

對答辯人不公平 , 因此裁判官決定直接宣判罪名不 

成立及撤銷控罪。 

裁判官指出 , 這個無罪的裁定引起三點法律問 

題 , 但最主要的是第一點 : 

(1) 本席裁定第 382 章《立法會 ( 權力及特 

權 ) 條例》第 17 條 (c) 款 , 是規範只被 

立法會或委員會命令到立法會或委員 

會作證的人士的行為 , 而非任何其他 

在會議廳的公眾人士的行為 , 這法律 

觀點是否有錯誤 ? 

(2) 如果沒有錯誤 , 本席不對控罪作出修 

改是否有錯誤 ? 

(3) 本席裁定第一及第二答辯人罪名不成 

立 , 在法律上是否有錯誤 ? 

上訴人指裁判官犯了原則上的錯誤 , 單就字眼 

來看 , 第 17(c) 條的適用對象已十分清楚 , 它是適 

用於 ` 任何人 ' 而並非祇是被傳召到立法會作證人 

士。` 任何人 ' 就會包括答辯人及任何出現在會議 

廳的公眾人士。 

至於香港特別行政區訴梁國雄一案 , 上訴人認 

為雖然胡法官沒有在他的判詞中提過第 8 條及其附 

例 , 但這不代表胡法官是被誤導或忽略了第 8 條的

7 

存在。簡單來說 , 胡法官祇需根據提出的控罪來判 

案 , 他不需要對所有有關的條例都去討論研究。 

上訴人根據法例第 221 章 ,《刑事訴訟程序條 

例》第 101D 條指出 , 本案案情屬於構成兩項或多 

項控罪的行為 , 所以第 8 條及第 17 條其實都適用 , 

但因為答辯人的擾亂行為涉及 ‘ 令會議程序中斷 ’ 的 

特別元素 , 所以第 17(c) 條比較第 8 條更為恰當。 

上訴人最後提出就算裁判官對第 17(c) 條的詮 

釋是正確的話 , 他也應該依據《裁判官條例》第 27 

條的條文去修改控罪 , 引用他認為是恰當的第 8 條 

來處理案件而不是直接撤銷控罪了事。上訴人強調 

第 27 條的要求是強制性的 , 如果告發欠妥 , 而情況 

又符合第 27(2) 條所列舉的條件的話 , 那麼裁判官 

就必須啓動修改控罪的程序。 

第 8 條及第 17(c) 條的條款分別如下 : 

對進入會議廳範圍的規限 

(1) 除本條另有規定外 , 立法會會議須公 

開舉行 ; 

(2) 除議員或立法會人員外 , 任何人進入 

或逗留在會議廳範圍內的權利 , 須受 

議事規則或立法會所通過用以限制或 

禁止享有此項權利的決議所規限 ; 

(3) 為維持會議廳範圍的保安、確保在其 

內的人舉止行為恰當、以及為其他行 

政上的目的 , 主席可不時發出他認為 

必要或適宜的行政指令 , 以規限非議 

員或非立法會人員的人進入會議廳及 

會議廳範圍內 , 並規限上述的人在其 

內的行為 ; 

(4) 主席根據第 (3) 款發出的行政指令 , 其 

副本須由秘書妥為認證 , 並在會議廳 

範圍內顯眼處予以展示 ; 凡如此認證 

和展示該等副本 , 即當作為已給予所 

有受該行政指令影響的人充分通知。

8 

藐視罪 

凡任何人 – 

(a) 不服從立法會或任何委員會所作出的合法 

命令 , 而該命令是要求他到立法會或該委 

員會列席 , 或要求他到立法會或該委員會 

席前出示任何文據、簿冊、文件或紀錄 

的 , 除非該人已根據第 13 條獲免列席或出 

示 ; 或 

(b) 在訊問過程中 , 拒絕接受立法會或任何委 

員會訊間 , 或拒絕回答由立法會或任何委 

員會所提出的任何合法及有關的問題 , 除 

非該人已根據第 13 條獲免回答 ; 或 

(c) 在立法會或任何委員舉行會議時 , 引起或 

參加任何擾亂 , 致令立法會或該委員的會 

議程序中斷或相當可能中斷 , 即屬犯罪 , 

可處罰款 $10,000 及監禁 12 個月 , 如持續 

犯罪 , 則在持續犯罪期間 , 另加每日罰款 

$2,000。 

裁決 : 

(1) 從不同角度來看 , 裁判官對第 17(c) 條的分析 

都是錯誤的 ; 

(2) 裁判官的結論主要建基於他對整個《立法會 

( 權力及特權 ) 條例》中各項條款之編排及最高懲罰 

之比較而成。他指出上述法例第二部份列出議員的 

特權及豁免權 , 這部份亦列出對進入會議廳範圍的 

人士的行為規限 , 即包括第 8 條 ; 第三部份列出立 

法會傳召證人的權力及有關證人的特權 ; 第四部份 

則列舉了違反第二及第三部份涉及之控罪的罰則。 

裁判官提到第四部份裏的第 17 條的 (a) 及 (b) 兩款規 

定都是有關於被命令到立法會作證的人士 , 所以第 

17 條就是規範被立法會或任何委員會命令出席作證 

人士的行為 , 而其他在會議廳的人士之行為則由第 

8 條所監管。法庭認為裁判官的分析稍欠全面。第

9 

17 條開宗明義地說 ` 凡任何人 ’ , 而這個 ` 任何 

人 ' 究竟指誰 , 那就要考慮到各條款的個別內 

容。 ` 任何人 ' 在 (a) 及 (b) 款的對象 , 當然是針對 

那些被傳召作證的人 , 但 (c) 款所指的 ` 任何人 ' 

必然會是任何那些 ` 在立法會或任何委員舉行會議 

時 , 引起或參加任何擾亂 , 致令立法會或該委員會 

的會議程序中斷或相當可能中斷 ' 的人士。(c) 款本 

身的用語非常清楚 , 裁判官沒有必要用其他條款去 

引證 (c) 款的意義 ; 

(3) 就算裁判官應該參考其他條款的話 , 那他也應 

該將第四部份的第 19 條一併考慮。第 19 條是有關於 

` 任何人 ' 干預議員 , 立法會人員或證人的條文。 

這包括襲擊、妨礙或騷擾議員及將會或已經作供的 

證人。這就顯示第四部份的範圍較寬而其對象就並 

非單是證人。第四部份裏的條款除了定下證人的責 

任 , 也規定了 ` 任何人 ' 不可對議員及證人進行干 

擾 , 更不容許 ` 任何人 ' 去擾亂會議程序 ; 

(4) 就算第 19 條沒有參考價值 , 單憑 17(c) 條本身 

的內容來分析 , 裁判官的看法也欠妥當。第 17(c) 

條的整個內容是 ` 任何人 ' 在立法會或任何委員舉 

行會議時 , 引起或參加任何擾亂 , 致令立法會或該 

委員的會議程序中斷或相信可能中斷即屬犯罪。這 

個 ` 引起或參加任何擾亂 ' 的對象 , 不可能祇適用 

於證人 , 因為它包含了幾個人一起犯案的可能。但 

基於裁判官的分析 , 如果有人在公眾席引起擾亂 , 

而被傳召的證人參加擾亂的話 , 但兩人就不可以共 

同被告第 17(c) 條而要分開處理。這與第 17(c) 條的 

內容並不相符。裁判官之分析似乎是祇著重於第 

17(a) 及 (b) 款的含意並以此來作推論但就迴避了 (c) 

款本身的內容 ; 

(5) 雖然胡法官在香港特別行政區訴梁國雄的判詞 

中沒有提過第 8 條 , 但法庭同意胡法官不需要在上 

述案件中逐一去討論其他條例。該案與本案的基本 

案情並無有意義之區別 , 法理上裁判官應該跟從。 

裁判官的做法反而是忽略了普通法的一個基本原

10 

則 , 即是跟隨先例的概念。該案例對裁判官具有約 

束力 ; 

(6) 第 8 條及第 17(c) 條都可以適用於答辯人的行 

為 , 而兩項控罪並非是互相排斥的。控方明顯是基 

於答辯人的行為所造成之後果而選擇以第 17(c) 條 

提出起訴。控方在法律上沒有犯錯。行為的結果這 

一點是兩項控罪的主要分別 , 也解釋了最高刑罰有 

很大差別的原因 ; 

(7) 就算第 17(c) 條在編排上或字眼上真有不明確 

的地方 , 但裁判官都不應以採取這狹窄的角度去詮 

釋及引用有關條例。這些條例之目的是保障立法會 

工作環境的尊嚴及效率。這不是說不准其他人表達 

意見 , 但表達意見的方式及手法如果造成擾亂的結 

果 , 控方就可以用較嚴重的第 17(c) 條提出起訴 ; 

(8) 基於以上的原因 , 法庭對第一條問題之回應是 

` 是 ', 裁判官的法律觀點有錯誤 ; 

(9) 本案所涉及的法律問題其實很清楚 , 祇是裁判 

官錯誤理解法例。如果再將案件交還裁判官處理 , 

似乎對答辯人做成不公。既然問題已得到澄清 , 案 

件無須發還裁判官處理或重審。但這並不代表答辯 

人當時的行為得到認同 ; 立法會的尊嚴應該受到尊 

重和保障。 

結果 .. 上訴得直但不發還裁判官或重審。 

附帶意見 : 就算裁判官對第 17(c) 條的理解是正確 

的話 , 在本案的情況下 , 他應該引用 

《裁判官條例》第 27 條去修改控罪。 

但法庭不認為 Poon Chau-cheong v 

Secretary for Justice [2002] 2 

HKLRD 636 能夠支持上訴人在陳詞中 

的一個論點 , 即是說 , 裁判官應該一直 

修改控罪直至可以判罪為止。第 27 條 

的原意並非如此。

11 

[English digest 

of MA 1270 of 

2003, above] 

Tong J 

(28.6.2004) 

*Cheung Waisun 

& Robert K Y Lee 

#I/P 

(1) KOO 

Sze-yiu 

(2) LEUNG 

Kwokhung 

Disturbance which interrupted the proceedings of the 

Legislative Council/s 17(c) of the Legislative Council (Powers 

and Privileges) Ordinance, Cap 382/Applicability/Notion of 

stare decisis/Difference in maximum penalties under s 8 and 

s 17(c), Cap 382 

The Respondents were jointly charged with the offence of 

creating a disturbance in the Legislative Council Building on 26 

February 2003, which interrupted the proceedings of the 

Legislative Council while the Council was sitting, contrary to s 

17(c) of the Legislative Council (Powers and Privileges) 

Ordinance, Cap 382. 

Both Respondents pleaded not guilty. Having heard the 

submissions, the magistrate acquitted them after trial and 

dismissed the charge. In his verdict, the magistrate ruled that the 

charge should have been one under s 8 and s 20 of the same 

Ordinance instead of under s 17(c). The magistrate, however, 

refused to exercise the power vested in him by s 27 of the 

Magistrates Ordinance, Cap 227, to amend the charge to one under 

s 8. The Appellant appealed against the magistrate’s 

determination by way of case stated, pursuant to s 105 of the 

Magistrates Ordinance, Cap 227. 

There was little in dispute regarding the evidence. The 

magistrate ruled that the Appellant had established the following 

basic facts : 

(1) About 5:30 pm on 26 February 2003, the 

Legislative Council was conducting the First and 

Second Reading of the National Security 

(Legislative Provisions) Bill at the Legislative 

Council Building at 8 Jackson Road, Central. 

When the former Secretary for Security (Mrs 

Regina Ip) was about to make her motion speech 

on the Second Reading of the Bill, a group of 

Legislative Councillors stood up to protest and 

walked out of the Council Chamber. At this 

juncture, some person(s) threw pieces of paper 

from the No. 2 public gallery down to the Council 

Chamber. The first and second Respondents also 

stood up from their seats in the No. 2 public 

gallery and shouted slogans (protesting against 

Article 23 and demanding retraction of the blue 

Bill). The second Respondent also tried to display 

a black fabric banner; 

(2) LegCo security officers came up to stop the two 

Respondents, told them to keep quiet and to return

12 

to their seats. The two Respondents kept on 

shouting slogans and held onto the railings. They 

were eventually removed from the public gallery 

by force, in the course of which the Respondents 

scuffled with the security officers. As a result, the 

LegCo meeting was interrupted for about 2 

minutes and it resumed after the Respondents had 

been taken away. 

The magistrate was of the view that s 17(c) regulated only 

the conduct of persons who were ordered by the Council or a 

committee to attend the Council to be examined. The conduct of 

other members of the public inside the Council Chamber fell 

within the ambit of s 8 and its subsidiary legislation. He pointed 

out that since the Respondents were not summoned to attend the 

Council, their conduct should only be regulated by s 8 and the 

relevant administrative instructions. He took the view that the 

prosecution had chosen the wrong provision for the charge. 

The magistrate noted that Mr Justice Woo had handled a 

similar case HKSAR v Leung Kwok-hung (HCMA 561/1999), in 

which he ruled that s 17(c) was appropriate. The magistrate 

nevertheless chose not to follow the precedent for the following 

reason : 

…… Albeit the facts of these 2 cases are similar, I note 

that in the course of appeal (of the previous case), there 

was no mention by the appellate court of s 8 and its 

subsidiary regulations. It may well be that both the 

prosecution and the appellant overlooked s 8 and its 

subsidiary regulations and the question of their 

applicability, thus resulting in the appellate court 

having been misled and also failed to note the existence 

of s 8 and its subsidiary regulations. For this reason, I 

am of the view that on the issue of whether s 17(c) is the 

appropriate charge, that case cannot be regarded as 

binding authority. 

On the question of amending the charge, the magistrate 

stated that since s 17(c) and s 8 were totally different in their 

nature and ambit of regulation, the variance was material and any 

amendment at the verdict stage would cause injustice to the 

Respondents. He therefore decided not to amend the charge but 

simply dismiss it. 

The magistrate certified three questions of law, the first one 

being the most crucial: 

(1) In determining that s 17(c) of the Legislative 

Council (Powers and Privileges) Ordinance, Cap 

382 regulated only the conduct of persons who

13 

were ordered by the Council or a committee to 

attend the Council or the committee to be examined 

but not the conduct of other members of the public 

inside the Council Chamber, did I err in point of 

law? 

(2) If the determination was not erroneous, was I 

wrong not to amend the charge? 

(3) Was my acquittal of the two Respondents 

erroneous in point of law? 

The Appellant submitted that the magistrate was wrong in 

principle. It was clear from the wording alone that s 17(c) applied 

to ‘any person’ and not only to persons ordered to attend the 

Council to be examined. ‘Any person’ would include the 

Respondents and any members of the public inside the Council 

Chamber. 

As for HKSAR v Leung Kwok-hung, the Appellant 

considered that although Mr Justice Woo made no mention of s 8 

and its subsidiary regulations in his judgment, that did not mean 

that he had been misled or had overlooked the section. After all, 

Mr Justice Woo needed only to decide the case as charged and 

needed not to discuss or study all relevant legislation. 

The Appellant pointed out that the facts of the present case 

were acts constituting two or more offences under s 101D of the 

Criminal Procedure Ordinance, Cap 221. Hence both s 8 and s 

17(c) were applicable. Nevertheless, s 17(c) was more appropriate 

than s 8 because the Respondents had created a disturbance which 

resulted in ‘interruption of the proceedings’, a special element of 

offence. 

The Appellant finally submitted that even if the magistrate’s 

interpretation of s 17(c) was correct, he should have amended the 

charge, pursuant to s 27 of the Magistrates Ordinance, to one 

under s 8 which he deemed more appropriate, instead of simply 

dismissing the case. The Appellant emphasised that s 27 was 

mandatory. Where the information was defective and the criteria 

laid down in s 27(2) were met, the magistrate was obliged to 

initiate the amendment process. 

Sections 8 and 17(c) read respectively as follows: 

Regulation of admittance to precincts of the Chamber 

(1) Subject to this section, sittings of the Council shall 

be open to the public. 

(2) The right of persons other than members or officers

14 

of the Council to enter or remain within the 

precincts of the Chamber shall be subject to the 

Rules of Procedure or any resolution of the 

Council limiting or prohibiting the enjoyment of 

such right. 

(3) The President may from time to time, for the 

purpose of maintaining the security of the precincts 

of the Chamber, ensuring the proper behaviour and 

decorum of persons therein and for other 

administrative purposes, issue such administrative 

instructions as he may deem necessary or 

expedient for regulating the admittance of persons 

(other than members or officers of the Council) to, 

and the conduct of such persons within, the 

Chamber and the precincts of the Chamber. 

(4) Copies of administrative instructions issued by the 

President under subsection (3) shall be duly 

authenticated by the Clerk and exhibited in a 

conspicuous position in the precincts of the 

Chamber; and such copies when so authenticated 

and exhibited shall be deemed to be sufficient 

notice to all persons affected thereby. 

Contempts 

Any person who- 

(a) disobeys any lawful order made by the Council or a 

committee requiring him to attend or produce any 

papers, books, documents or records before the 

Council or committee, unless such attendance or 

production is excused under section 13; or 

(b) refuses to be examined before, or to answer any 

lawful and relevant question put by, the Council or 

a committee during the course of any examination, 

unless such refusal is excused under section 13; or 

(c) creates or joins in any disturbance which interrupts 

or is likely to interrupt the proceedings of the 

Council or a committee while the Council or such 

committee is sitting, 

commits an offence and is liable to a fine of $10000 and 

to imprisonment for 12 months, and in the case of a 

continuing offence to a further fine of $2000 for each 

day on which the offence continues. 

Held :

15 

(1) The magistrate’s analysis of s 17(c) was flawed from 

different perspectives; 

(2) The magistrate’s conclusion was based mainly on his 

analysis of the structure of the Legislative Council (Powers and 

Privileges) Ordinance, Cap 382 and a comparison of the maximum 

penalties. As pointed out by him, Part II (which covered s 8) 

outlined the privileges and immunities of Councillors, and 

provided for regulation of admittance to the precincts of the 

Chamber. Part III provided for the power of the Legislative 

Council to order attendance of witnesses and privileges of 

witnesses. Part IV provided for the penalty for contravention of 

the relevant offences under Parts II and III. The magistrate 

observed that since subsections (a) and (b) of s 17 in Part IV dealt 

with persons who were ordered to attend the Council for 

examination, it followed that s 17 was for regulating conduct of 

persons who were ordered by the Council or a committee to attend 

the Council to be examined, whilst conduct of other persons inside 

the Council Chamber fell within the ambit of s 8. The court was 

of the view that the magistrate’s analysis was not comprehensive 

enough. Section 17 began with ‘Any person who…’. What ‘any 

person’ meant depended on the individual provisions. In 

subsections (a) and (b), ‘any person’ clearly referred to those who 

were ordered to attend the Council, but in subsection (c), ‘any 

person’ must be anyone who ‘creates or joins in any disturbance 

which interrupts or is likely to interrupt the proceedings of the 

Council or a committee while the Council or such committee is 

sitting’. The wording of subsection (c) was so clear that there was 

no need for the magistrate to have cited other provisions to clarify 

its meaning; 

(3) Even if it was necessary for the magistrate to refer to other 

provisions, he should have taken into consideration s 19 of Part 

IV. Section 19 was a provision against the interference with 

members, officers or witnesses by ‘any person’. It dealt with 

people who assaulted, obstructed or molested members and 

witnesses who would be giving or had given evidence. It was 

evident that Part IV covered a much wider area and not just 

witnesses. Apart from setting out the duties of witnesses, this part 

also prohibited ‘any person’ from interfering with members and 

witnesses, and disallowed ‘any person’ from disturbing Council 

proceedings; 

(4) Even if s 19 were of no reference value, the analysis of the 

content of s 17(c) itself sufficed to show that the magistrate’s 

view was flawed. The entire s 17(c) made it an offence for ‘any 

person’ to create or join in any disturbance which interrupted or 

was likely to interrupt the proceedings of the Council or a 

committee. Persons who ‘created or joined in any disturbance’

16 

could not be taken to refer only to witnesses. It was possible that a 

number of persons committed the offence together. According to 

the magistrate’s line of reasoning, if a person created a disturbance 

in the public gallery and a witness joined in, these two persons 

could not be jointly charged under s 17(c) but would have to be 

dealt with separately. This was inconsistent with the provisions of 

s 17(c). It seemed that the magistrate’s analysis focused only on 

subsections (a) and (b) from which inferences were drawn but 

ignored subsection (c) per se; 

(5) Although Mr Justice Woo made no mention of s 8 in the 

judgment of HKSAR v Leung Kwok-hung, the court agreed that 

there was no need for the judge to discuss the other provisions one 

by one. As there was no significant difference between the basic 

facts of the two cases, the magistrate should have followed the 

precedent as a matter of legal practice. The magistrate’s handling 

of this case deviated from the basic common law principle of stare 

decisis. The previous case was binding upon the magistrate; 

(6) Both s 8 and s 17(c) were applicable to the conduct of the 

Respondents and the two charges were not mutually exclusive. 

The prosecution’s choice of s 17(c) was obviously based on the 

consequence brought about by the Respondents’ conduct. The 

prosecution did not err in law. The major difference between the 

two charges lay in difference between the consequences of 

conduct, which also explained the substantial difference in 

maximum penalties; 

(7) Even if s 17(c) was unclear in its structure or wording, the 

magistrate should not have interpreted and applied the provisions 

in such a narrow sense. The provisions were intended to safeguard 

the dignity and efficiency of the working environment in the 

Legislative Council. That was not to say that other people were 

not allowed to express their views, but if the ways and means of 

their expression caused interruptions, the prosecution could 

institute a charge under the more severe s 17(c); 

(8) For the above reasons, the court’s answer to the first 

question was ‘yes’ - the magistrate erred on a point of law; 

(9) The questions of law involved in the present case were in 

fact rather straightforward but the magistrate had misinterpreted 

the law. If the case was remitted to the magistrate, it might cause 

injustice to the Respondents. Since the questions had been 

clarified, it would not be necessary to remit the case to the 

magistrate or to order a retrial. This, however, should not be taken 

to mean that the Respondents’ conduct on that occasion was to be 

condoned. The dignity of the Legislative Council should be 

upheld and safeguarded.

17 

Result - Appeal allowed. No consequential orders. 

Obiter - Even if the magistrate’s interpretation of s 17(c) were 

correct, he should, under the circumstances of the case, 

have invoked s 27 of the Magistrates Ordinance to amend 

the charge. The court did not think Poon Chau-cheong v 

Secretary for Justice [2002] 2 HKLRD 636, lent support 

to the Appellant’s submission that the magistrate should 

have kept on amending the charge until he could convict. 

Such was not the intent of s 27.

18 

B. CRIMINAL APPEALS/ 

AGAINST CONVICTION 

刑事上訴案件 / 針對定罪 

CA 582/2002 

Stuart-Moore VP 

Yeung JA 

Beeson J 

(21.5.2004) 

*DG Saw SC 

& Fung Mei-ki 

#Annie Lai 

YIU 

Chi-wang 

Rape/Directions on burden of proof/Judge inviting jury to 

consider whether complainant or defendant telling the truth/If 

defendant disbelieved prosecution still required to prove 

charge 

強姦 – 就舉證責任作出的指引 – 法官請陪審團考 

慮究竟是事主還是被告人說出事實真相 – 被告人 

不獲相信 - 控方仍須證明控罪 

The Applicant was convicted after trial of rape. 

The offence was alleged to have occurred at the Applicant’s 

home on 5 May 2002. The complainant and the Applicant were 

known to each other. The complainant, aged 20, stated that at 

about 9:30 am she awoke to find herself in premises she had never 

seen before. She was naked and the Applicant was in the process 

of having sexual intercourse with her. Evidence was given by 

other witnesses for the prosecution and defence about the 

complainant’s behaviour prior to the alleged rape which revealed 

that she had become very drunk in the early hours of that morning. 

She had also, without being aware of it, consumed a drug known 

as Clobozam, the side effects of which included drowsiness, 

confusion, light-headedness, and amnesia. If taken with alcohol, 

increased effects would result therefrom. 

On 5 May 2002, the complainant was at the C Club in Lan 

Kwai Fong, and admitted she was ‘very drunk ’ . She remembered 

wanting to dance and being hungry but also feeling bad and 

vomiting. She remembered being supported by a friend, but had 

no recollection until she later awoke in the same bed as the 

Applicant. The complainant had no specific memory of anything 

which occurred between herself and the Applicant in the early 

hours of the morning, either at the C Club or at a restaurant which 

the evidence revealed she had visited. She had no recollection of 

meeting the Applicant. She was unable to remember anything 

from the time of leaving the C Club until she woke up the next 

morning. 

The Applicant testified that sexual intercourse had taken 

place, but that the complainant was a willing and enthusiastic 

participant and was in control of herself. She had willingly 

removed all of her clothing at his home and they had slept 

together. 

Although the defence case had not raised such a defence, the

19 

judge left for the jury’s consideration the issue of genuine but 

mistaken belief in consent. 

On appeal, it was submitted, inter alia, that the judge had 

erred in his directions to the jury on the burden of proof. This 

argument focused on directions where the judge invited the jury to 

consider whether it was the complainant or the Applicant who had 

been telling them the truth, and where the jury was asked to 

consider whether or not a CCTV film provided any support for 

either of the versions they had heard. 

Held : 

(1) The problem with which the jury was confronted was not 

infrequently encountered in cases involving allegations of sexual 

assault where the prime conflict, as to what occurred just before 

and at the time of the alleged offence, was to be determined solely 

on the testimony given by the complainant and the defendant. 

This was considered in Liberato & Ors v R [1985] 159 CLR 507, 

515, where Brennan J said: 

When a case turns on a conflict between the evidence 

of a prosecution witness and the evidence of a defence 

witness, it is common place for a judge to invite a jury 

to consider the question: who is to be believed? But it 

is essential to ensure, by suitable direction, that the 

answer to that question (which the jury would 

doubtless ask themselves in any event) if adverse to the 

defence, is not taken as concluding the issue whether 

the prosecution has proved beyond reasonable doubt 

the issues which it bears the onus of proving. The jury 

must be told that, even if they prefer the evidence for 

the prosecution, they should not convict unless they 

are satisfied beyond reasonable doubt of the truth of 

that evidence. The jury must be told that, even if they 

do not positively believe the evidence for the defence, 

they cannot find an issue against the accused contrary 

to that evidence if that evidence gives rise to a 

reasonable doubt as to that issue. 

(2) The jury were given directions in the clearest terms as to the 

burden and standard of proof. They were told that even if they did 

not believe what the Applicant had said in his testimony, it was 

still for the prosecution to prove the charge by the evidence they 

had called. 

Result - Application dismissed. 

Obiter - There were dangers in a judge opening up a topic of law 

for which there had been no evidential foundation. This

20 

could only lead to speculation. 

CA 520/2003 

MA CJHC 


Lunn J 

(11.6.2004) 

*Kevin Zervos SC 

& Marco Li 

#N Sarony SC 

Johannes Chan 

Angela Gwilt & 

Kennis Tai 

(1) SIN 

Kam-wah 

(2) LAM 

Chuen-ip 

Misconduct in public office/Senior police officer accepting free 

sexual favours from night club owner/No real distinction 

between acceptance of sex and acceptance of money/Police 

officer deemed to be on duty when circumstances so required 

藉公職作出的不當行為 – 高級警務人員接受夜總 

會東主免費提供的性優待 – 接受性優待和接受金 

錢實際上並無分別 – 警務人員在情況需要時當作 

為在當值中 

A1 was convicted after trial of three charges of misconduct 

in public office. A2 was convicted of three charges of exercising 

control, direction or influence over other persons for the purposes 

of or with a view to their prostitution, and three charges of 

offering an advantage to a public officer. All three sets of charges 

were inter-linked and related to three separate occasions on 

various dates between March 2001 and May 2002. They were 

reciprocal charges. 

A1 at the material time was a Senior Superintendent of the 

Hong Kong Police Force. Between April 1998 and March 2001, 

he was attached to the Organized Crime and Triad Bureau. 

Between April 2002 and May 2002, he was attached to the 

Narcotics Bureau. 

A2, the wife of a police officer, had a beneficial interest in 

four clubs in Tsim Sha Tsui. The judge at trial found that these 

had the primary function of providing to their customers sexual 

services in the form of hostesses. The hostesses were, in reality, 

prostitutes. 

The evidence showed that A1 accepted sexual favours 

bestowed on him by A2. He accepted free sexual services from 

the hostesses she arranged for him. The judge concluded that 

these favours were provided to and accepted by him in relation to 

his office. He was a Senior Superintendent and the favours 

provided were well beyond normal hospitality. The money paid to 

the hostesses by A2 was substantial. The inference was that these 

forms of entertainment were provided to A1 as some sort of 

‘sweetener’ to him. A2 had interests in establishments which were 

extremely dubious from a legal point of view. 

On appeal, A1 submitted that all A1 did was to accept 

hospitality from a friend. A2 was the wife of a police officer. It 

was, therefore, pure conjecture that there was any corrupt motive

21 

involved. This was reinforced by the fact that although the 

establishments with which A2 was linked did have dealings with 

the police, these dealings were with a different department within 

the Police Force to that to which A1 belonged. 

A1 further submitted that a police officer could only be 

deemed to be on duty when he was required (in the sense of being 

actually instructed by a superior) to be on duty; alternatively, if he 

was always to be on duty, this was somehow in breach of the antidiscrimination 

provisions of the Bill of Rights (Articles 1 and 22) 

as he, unlike others in society, would never really have a day off. 

Held : 

Section 21 of the Police Force Ordinance, Cap 232, read: 

Every police officer shall for the purposes of this 

Ordinance be deemed to be always on duty when 

required to act as such and shall perform the duties 

and exercise the powers granted to him under this 

Ordinance or any other law at any time and every 

place in Hong Kong where he may be doing duty. 

(1) For A1 to put himself in the position of accepting favours of 

this nature (especially given his office) from a person who 

indulged in highly questionable activities and whose 

establishments would have frequent contacts with the police was 

very serious misconduct indeed. There was no material before the 

judge that suggested that what was provided to A1 was mere 

hospitality between friends. There was no material to suggest that 

A1 and A2 were even friends. Even if they were, the provision of 

sexual favours was hardly the normal form of hospitality between 

friends, even close friends. The whole idea here was far fetched; 

(2) A1 was a very senior police officer and to be kept ‘sweet ’ 

by a person like A2 was significant. Purely as a matter of 

common sense, it was difficult to see any explanation for A1’s 

acceptance and A2’s provision of the sexual favours other than 

sinister ones. It was accepted by the Applicants that had money 

changed hands, this would have been very much more sinister. 

There was little or no difference in this case between the payment 

of money and the provision, at no cost to A1, of sexual favours; 

(3) In analyzing the facts of any given case to see whether the 

ingredients of the offence had been proven to exist, the central 

theme of the offence of misconduct had to be borne in mind: the 

concept of the intentional abuse of an official position. In this 

case, the necessary ingredients of the offence existed and A1 had 

intentionally abused his official position;

22 

(4) Section 21 of the Police Force Ordinance was a deeming 

provision. If the deemed state of affairs (namely, a police officer 

being on duty) could only exist when the police officer was 

actually ordered to be on duty, there would be no need for a 

deeming provision at all: the police officer would then actually be 

on duty and there would be no reason why he should in these 

circumstances be deemed to be on duty. The meaning of s 21 was 

that a police officer was deemed to be on duty when circumstances 

existed requiring him to exercise the powers he had as a police 

officer. Thus, for example, where he observed a crime being 

committed, he ought to take all necessary action. The obligation 

on a police officer was to discharge his duties if he was able to do 

so. If he was for any legitimate reason unable to, he would be 

excused from doing so; 

(5) There was no constitutional impediment to this analysis of 

the construction of s 21. Police officers, by reason of their office 

and the crucial duties they discharged to society, must have some 

constraints that other people might not have. Section 21 satisfied 

the proportionality test. 

Result - A1’s application dismissed. 

[A2’s application dismissed on other grounds]

23 

C. CRIMINAL APPEALS/ 

AGAINST SENTENCE 

刑事上訴案件 / 針對刑罰 

CA 39/2004 


Lunn J 

(14.5.2004) 

*William Tam 

#Simon 

Westbrook SC 

CHAN 

Wang-kwok 

Conspiracy to make and use false instruments/Production of 

false documents to trick foreign governments to accept 

immigrants/Approach to disparate sentences/Clear record 

subsumed into customary discount/Detention abroad 

串謀製造和使用虛假文書 – 出示虛假文件欺騙外 

國政府使其接納移民 – 對判刑差異的處理方法 – 

無犯罪紀錄所獲的刑期減免已納入慣常的刑期減免 

內 – 在海外遭羈留 

The Applicant pleaded guilty to one offence of conspiracy to 

make false instruments, contrary to ss 71 and 159A of the Crimes 

Ordinance, Cap 200, (Charge 1) and two offences of conspiracy to 

use false instruments, contrary to ss 73 and 159A of the Crimes 

Ordinance, Cap 200. (Charges 3 and 4), and was sentenced to 

14 months’ imprisonment on each charge, all sentences to be 

served concurrently. 

The three charges arose out of the Applicant’s business in 

which he provided services to clients, including applications for 

emigration. In Charge 1, the Applicant conspired in 1998 with 

Tsang Kwok-shing, a District Manager of City College, to make 

false academic certificates and diplomas purportedly issued with 

the intention that others accepted them as genuine. In particular, 

the false documents were to be used by the Applicant in support of 

applications made by his clients for emigration to Canada. 

Charges 3 and 4 concerned conspiracies in 1997 and 1998 

between the Applicant and his clients who sought to emigrate and 

whom he assisted by the provision of false certificates. In each 

case, he prepared and submitted to a Canadian Consulate an 

Emigration Application Form, which asserted that the respective 

Applicant possessed academic qualifications, which was false. 

The Applicant provided each of his clients with the original false 

documents so that they could present them in person to the 

consulate in question, and that they did. In both conspiracies, the 

Applicant had been the instigator of the conspiracy in consequence 

of his advice to his clients that their respective academic 

background was insufficient for them to succeed in their 

applications for emigration to Canada. 

On appeal, the Applicant submitted that the starting point for 

sentence of 2 years’ imprisonment was manifestly excessive 

having regard to his criminality and the sentences imposed by 

others judges upon co-conspirators in respect of related

24 

conspiracies. It was also said that the sentencing judge gave 

insufficient discount in sentence, having regard to the Applicant’s 

clear record with positive character references, the fact that the 

Applicant was in custody in Canada for 36 days, and the staleness 

of the offences and the delay in bringing him to trial. 

Held : 

(1) This case concerned the production of false documents to be 

used to trick the consulates of foreign governments in relation to 

emigration applications with the subsequent ramifications to the 

integrity of documentation produced in Hong Kong: Attorney 

General v Tai Chin-wah [1994] 2 HKCLR 81, HKSAR v Chim 

Pui-chung Cr App 402/98 distinguished; 

(2) The judge was clearly correct when he stated that 

notwithstanding the sentences imposed upon defendants in related 

cases, it was his duty to pass the sentence he deemed appropriate 

in this case: R v So Hung-lee [1986] HKLR 1049; 

(3) In taking a starting point for sentence of 2 years’ 

imprisonment the judge was not in error; 

(4) Although the judge had given the Applicant a discount of 

one month for his ‘effectively clear record ’ , this was unwarranted. 

This factor of mitigation was usually subsumed within the onethird 

discount for a timely plea: HKSAR v Yan Wai-ming Cr 

App 417/2002; 

(5) As regards the complaint that the judge had allowed only 

one month’s discount in respect of the 36 days the Applicant spent 

in detention in Canada pending his return to Hong Kong, there 

were no grounds to impugn the exercise of what was clearly the 

discretion he had; 

(6) Of the complaint of delay in bringing proceedings and the 

consequent staleness of the offences, the Applicant left Hong 

Kong in 1998 and returned to live in Canada where he was 

detained in October 2003. No blame in terms of delay or staleness 

attached to the Authorities. 

Result - Application dismissed. 

[See also Sentencing in Hong Kong, 4th ed, at p 543: Ed]

25 

CA 126/2002 

Stock & 

Yeung JJA 

Lugar-Mawson J 

(30.6.2004) 

*K Zervos SC & 

Tsang Oi-kei 

#Edwin Choy 

(1 & 2) 

Michael Delaney 

(3 & 4) 

(1) CHAN 

Ngan-ying 

(2) CHAN 

Yuk-ha 

(3) CHEUNG 

Wai-chi 

(4) LO 

Lai-yung 

Conspiracy to defraud/Loco-London Gold and Silver frauds/ 

Jurisdictional limit of District Court/Heartless crime of 

deception/Disparity of sentences 

串謀詐騙 – 本地倫敦金銀的詐騙案 – 區域法院的 

司法權限 – 冷酷無情的欺騙罪行 – 判刑上的差異 

The Applicants were four out of twenty defendants who 

were charged in various combinations with offences of conspiracy 

to defraud and theft in relation to the operation of four companies 

each of which purported to be involved in futures trading. The 

frauds were of the type known as ‘Loco-London Gold or Loco- 

London Silver Frauds’ in which persons were induced to work for 

a fraudulent investment company where they were swindled out of 

substantial sums of money by false representations by the 

conspirators that their money had been invested and then lost in 

futures trading. 

Two of the bogus companies purported to be in the business 

of Loco-London Silver. The other two bogus companies 

purported to be in the business of oil trading. It was the 

prosecution case that none of the four companies had any 

legitimate purpose. They were set up for the sole purpose of 

cheating the public out of large sums of money. The victims were 

recruited through advertisements which offered attractive salaries 

for straightforward clerical work in the companies, which were all 

registered. Once the victims had been offered employment, they 

were set to work doing meaningless office tasks and then deceived 

into paying money to the companies for apparent investment either 

into the Loco- London Silver market or trading in oil futures. No 

investments were made, the victims’ payments going straight into 

the conspirators’ pockets. The victims were told their money had 

been lost in trading. They were then sacked for incompetence, or 

left voluntarily. 

A1 was convicted of two charges of conspiracy to defraud, 

and three charges of theft; A2 was convicted of three charges of 

conspiracy to defraud and one charge of theft. For both A1 and 

A2, the judge took a starting point for sentence of 7 years’ 

imprisonment, which was reduced to 6 years to reflect the fact that 

the major offenders could only be sentenced to 7 years’ 

imprisonment because of the jurisdictional limit of the District 

Court. 

A3 and A4 were each convicted of two charges of 

conspiracy to defraud. They were each sentenced to 4 years’ 

imprisonment on each charge, with 2 years of the sentence on one 

charge ordered to run consecutively to the sentence on the other, 

resulting in a total term of 6 years’ imprisonment.

26 

The roles of A1 and A2 in the frauds were considerable, and 

they played many parts in the scams. The roles of A3 and A4 

were less significant, and they were ‘special agents ’ whose job 

was to pose as new recruits to the company, befriend the victims, 

mollify their concerns and then induce them to ‘invest’ their 

money in the purported trading activities of the company. 

Held : 

On appeal 

(1) As regards A1 and A2, the judge was bound by the 

sentencing jurisdictional limit in the District Court of 7 years’ 

imprisonment, and was constrained by law to impose that 

maximum sentence on each of them. That was in accordance with 

established principle. It did not mean, however, that he was as 

equally constrained to reduce the sentences for the other 

conspirators, whose sentences fell within his sentencing 

jurisdiction, by the same ratio. There could be no doubt that by 

reducing the sentences of A1 and A2 by a year the judge had the 

sentences imposed on the three masterminds well in mind; 

(2) It was a matter of great surprise that a Loco-London 

Gold/Silver fraud of this magnitude had been prosecuted in the 

District Court rather than the Court of First Instance especially in 

relation to the masterminds; 

(3) A3 and A4 had associated themselves with very serious 

crimes. Loco-London Gold/Silver frauds were one of the most 

heartless crimes of deception practiced in Hong Kong: HKSAR v 

Ching Chun-wai Cr App 11/2001. They targeted ordinary 

members of the public and not banks or similar commercial 

organizations. They required a great deal of planning and 

considerable skill in execution. If successful, they ran for a long 

time before being closed down. They earned their perpetrators a 

great deal of money - a known $31 million in this case. They 

required a sizable number of willing conspirators to operate 

successfully and they corrupted those who were drawn into the 

work for them; 

(4) The only roles the prosecution witnesses spoke of A3 and 

A4 playing with the fraudulent companies was that of ‘special 

agents ’ or callous befrienders, and their roles were lesser than 

those of A1 and A2, both of whom were accomplished actresses 

playing many parts in the scams. It was the case, however, that 

Loco-London Gold/Silver frauds could not work without ‘special 

agents ’ , who played one of the most important roles in these 

scams;

27 

(5) Insofar as A3 and A4 complained of disparity of sentence, 

two situations commonly arose where there was such a complaint. 

The first was when there was a disparity between sentences passed 

on the same occasion by the same judge. In this case the sentence 

should only be varied if it could be shown that the judge failed to 

apportion blame between the various defendants properly so that it 

could be said that, notwithstanding that the appellant’s sentence 

was otherwise appropriate, it was so disparate when compared 

with the other sentences passed at the same time on his codefendants 

as to engender a real sense of grievance on his part. 

The second was when different sentences were passed on different 

accused for the same offence or offences by different judges on 

different occasions. In that situation the only consideration was 

whether the sentence passed on the accused was proper: R v So 

Hung-lee and Another [1986] HKLR 1049 and R v Lam Ho-kwong 

Cr App 175/92; 

(6) In R v Stroud (1977) 65 Cr App R 150, Roskill LJ said that it 

had never been intended that a sentence should be reduced on 

account of disparity unless there was a glaring disparity which 

engendered a grievance. In R v Fawcett (1983) 5 Cr App R (S) 

158, Lawton LJ, at 161, put the basis for an appellate court’s 

intervention in a disparity argument as follows: ‘Would right 

thinking members of the public, with full knowledge of all the 

relevant facts and circumstances, learning of this sentence 

consider that something had gone wrong with the administration 

of justice?’ If the answer to that question was in the affirmative an 

appellate court would consider interfering, not necessarily because 

justice had not been done to a particular person, but because what 

had been done offended against the appearance of justice: R v 

Potter [1977] Crim LR 112; 

(7) In this case there were four other defendants, each convicted 

of a greater number of offences than A3 and A4, who each 

received the same overall sentence of 6 years’ imprisonment that 

they did. The judge failed to make a clear distinction in respect of 

culpability regarding A3 and A4. This engendered a real and 

legitimate sense of grievance in their minds and the commonsense 

test of Lawton LJ in Fawcett (supra) was made out. 

Result - Applications of A1 and A2 dismissed. Applications of 

A3 and A4 allowed, and sentences on each of 4 years 

and 6 months’ imprisonment substituted. 

[For disparity generally, see Sentencing in Hong Kong, 

4th ed, at pp 177 to 183: Ed] 

CAs 550 & (1) KWOK Robbery/Victim assaulted in private premises/Theft of PIN

28 

551/2003 


Lunn J 

(15.6.2004) 

*Chan Fung-shan 

#CDF Coghlan 

Tung 

(2) KAN 

Chi-keung 

number/Effect of aggravating factors on sentence 

搶劫罪 – 受害人在私人地方受襲 – 盜竊個人密 

碼 – 加重刑罰因素對判刑的影響 

The Applicants pleaded guilty to an offence of robbery, 

which they were alleged to have committed jointly on 17 January 

2003, at Room 1604, on the 16th Floor of Honour Industrial 

Centre, 6 Sun Yip Street, Chai Wan. The victim was robbed of 

four credit cards, an ATM card, a clinic card and an Octopus card, 

as well as her mobile telephone, mini disc walkman and $77.50. 

A1 pleaded guilty at committal in the magistracy. He 

confirmed that plea before Beeson J. He was sentenced to 6 years’ 

imprisonment. 

A2 pleaded guilty on the first day of trial. He was sentenced 

to 6½ years’ imprisonment. 

The facts were that at about 8 pm on 17 January 2003, the 

31-year-old female victim was closing her office when a man 

pushed her back inside. Another man was already inside. One 

man snatched her telephone while another pressed her head down 

to the ground. One of them told the victim to be co-operative and 

said they just wanted money. The victim noticed that one of the 

men held a knife. She was pushed into the storeroom where her 

hands were tied with wire. Her head was covered by a T-shirt and 

her watch and rucksack were taken away. One of the men asked 

for the PIN numbers of the bank and credit cards in her wallet, and 

she was threatened with a stabbing. The victim then provided the 

number of one of her cards, and her eyes and mouth were then 

covered with an adhesive tape. 

After police arrived, the Applicants were caught. The 

property identified in the charge was found on A1, together with a 

knife ten inches in length. A1 also had a knife sheath attached to 

each of his calves. It was accepted that the Applicants were 

carrying two knives but the second of these had never been 

recovered. Under caution, both admitted their involvement in the 

offence. 

On appeal, it was submitted that the sentences were 

manifestly excessive. 

Held : 

(1) The guideline sentencing tariffs for an offence of the present 

kind were laid down in Mo Kwong-sang v R [1981] HKLR 610. 

Roberts CJ said that if these guidelines had been applied to the 

appellant in that case, who was treated as a person of previous

29 

good character, he would have received a sentence of 7 to 8 years. 

At 611, he said: 

… the appropriate sentence in an ordinary case of 

armed robbery, where the accused was carrying a knife 

or other dangerous weapon which he displayed to his 

victim, should normally be five years. If such a robbery 

also involves an invasion of private premises (which 

includes domestic and business premises and the 

common parts of premises such as lifts and staircases) 

we suggest that a sentence of six years would be 

appropriate. 

If any physical violence, which includes tying them up, 

is used on any of the victims, we suggest that a sentence 

of seven years should be considered. These suggested 

sentences should be increased if there are other 

aggravating factors. Among these, though the list is not 

exhaustive, are invasion of domestic premises at night; 

the presence of more than one person in the group of 

robbers; threats made to victims, ill-treatment of elderly 

persons and children; and a multiplicity of offences of a 

similar kind. 

(2) When credit card PIN numbers were extracted from victims 

by threats or force, this added to the gravity of the offences: R v 

Sun Sheung-chung Cr App 152/93, HKSAR v Kwong Chi-ming Cr 

App 62/99; 

(3) Apart from their guilty pleas, there was little to be said for 

either of the Applicants, each of whom was well versed in the 

likely consequences of a crime of this gravity in the event that they 

were caught: HKSAR v Chan Pui-chi [1999] 3 HKC 848; 

(4) The sentences received by the Applicants were at the high 

end of the scale, but were within the permissible range having 

regard to all the aggravating circumstances which accompanied 

the offence. 

Result - Applications dismissed.

30 

D. MAGISTRACY APPEALS/ 

AGAINST CONVICTION 

裁判法院上訴案件 / 針對定罪 

MA 111/2004 

Gall J 

(2.4.2004) 

*Cheung Wai-sun 

& Chan Man-wai 

#G A Mackay 

CHEONG 

Un-ieng 

Inflicting grievous bodily harm/Victim burned with iron/ 

Whether injury grievous bodily harm/Question of fact in each 

case 

對他人身體加以嚴重傷害 – 受害人遭熨斗熨傷 – 

所受傷害是否嚴重身體傷害 – 屬每一案件的事實 

問題 

The Appellant was convicted of an offence of inflicting 

grievous bodily harm, contrary to s 19 of the Offences against the 

Person Ordinance, Cap 212. 

The prosecution case was that PW1, an Indonesian aged 19 

years, was employed with the family of the Appellant in 2003 as a 

servant. They were not happy with her performance. On 

5 September 2003, PW1 testified that she spilt some water while 

ironing. As she squatted down to wipe the floor, the Appellant 

lifted her shirt and placed the hot iron she had been using on her 

back. This caused a wound which consisted of a trapezoid 

brownish-red burn with ruptured blisters measuring about 10 cm 

by 6 cm with ruptured blisters about 11.5 cm by 0.5 cm. Two 

smallish burns were also found on examination upon the front of 

the right forearm of PW1. 

On appeal, it was submitted, inter alia, that the injury to the 

victim could not be categorised as grievous bodily harm. Reliance 

was placed upon HKSAR v Lo Tak-chi [2001] 3 HKC 385, where it 

was held that multiple bruise marks and abrasions, a small cut 

wound on the tongue which required suturing and a chipped tooth 

without fractures did not satisfy the definition of grievous bodily 

harm. 

Held : 

(1) The phrase ‘grievous bodily harm’ was not defined in the 

Offences against the Person Ordinance, Cap 212. In HKSAR v Liu 

Man-kuen MA 604/2000, Lugar-Mawson J said: 

In both Hong Kong and England, following a jury 

direction given by Willes J in R v Ashman [1858] 1 

F&F 88, it was formerly interpreted to include ‘… any 

harm, which seriously interferes with health or 

comfort’. But in DPP v Smith [1961] AC 290, the 

House of Lords said that there was no warrant for 

giving the words a meaning other than that which they 

convey in their ordinary and natural meaning.

31 

Viscount Kilmuir LC saying at p 334 of the report: 

‘Bodily harm’ needs no explanation, and 

‘grievous’ means no more and no less than 

‘really serious’. 

(2) In Liu Man-kuen, the court was considering a case with facts 

similar to these when a victim was told to place her hands on an 

ironing board and a hot iron was pressed down the back of both 

hands resulting in a secondary degree scaled wound of the dorsum 

of each hand. The court concluded that the injury involved 

grievous bodily harm, and said: 

It is a question of fact in each case. And whereas 

common sense tells one that some injuries will always 

be considered as amounting to grievous bodily harm 

and some, obviously minor ones, will not, in the vast 

majority of cases it is left to the tribunal, properly 

directed, to come to its own conclusion. 

(3) The magistrate in the instant appeal came to the same 

conclusion as in Liu Man-kuen, and it could not be said that was a 

wrong decision. 

Result - Appeal dismissed. 

MA 202/2004 

Fung DJ 

(21.5.2004) 

*Cheung Wai-sun 

& Yam Ho 

#A Macrae SC 

CHOU 

Shih-bin 

Possession of arms and ammunition/Defence that items 

planted in bag/Magistrate disbelieving defendant and drawing 

irresistible inference of guilt/No basis for appellate court to 

intervene on basis of lurking doubt/Magistrate overlooking 

effect of presumption and setting himself a higher standard 

管有槍械及彈藥 – 辯稱物品遭人栽藏袋中 – 裁判 

官不相信被告人並作出被告人有罪的不可抗拒推 

論 – 上訴法庭沒理由以潛在疑點為基礎而干預 – 

裁判官忽視推定的影響並自行設定較高的標準 

The Appellant was convicted after trial of an offence of 

possession of arms and ammunition without a licence, contrary to 

s 13 of the Firearms and Ammunition Ordinance, Cap 238. 

The prosecution case was that at about 5.50 pm on 13 June 

2003, the Appellant entered Hong Kong from the Mainland at Lok 

Ma Chau. At 7.15 pm, at Hong Kong Airport, where he was to fly 

to Taiwan, he presented his hand-carry baggage (ex P1) for X-ray 

screening. The security guard found an anti-riot gun of Chinese 

origin (ex P2) and a cartridge with five chambers (ex P3). It was 

admitted that ex P2 was a firearm, under Cap 238, and that ex P3 

was ammunition. The battery of the gun was not functioning and

32 

the gun was inoperative. The Appellant told the guard that the gun 

was for self-defence. 

The Appellant’s case at trial was that he was a Taiwanese 

who owned a factory in Dongguan, which employed 3,000 

workers and had an annual turnover of US$40 million. His family 

lived in Taiwan. 

The Appellant testified that on the morning of 13 June at 

about 9 am, he packed his baggage (ex P1). He did not pack 

exhibits P2 and P3, and had no knowledge of them. He then went 

to his office in the Administration Building, and put his bag next 

to the desk in his office. On that day he left the office on two 

occasions, and it was unattended and unlocked. About 20 people 

would have had access to his office regularly. There were four 

entrances to the office. On 12 June he had told senior staff he 

would leave for Taiwan the following day. At 3 pm he asked his 

assistant Zhu Zhong (DW2) to place his baggage in the boot of his 

car. When he crossed the border at 5.50 pm, neither the baggage 

nor the car was inspected. He produced his Hong Kong identity 

card, which was kept in his car. 

The Appellant denied having told PW1 that the gun was for 

self-defence. He thought someone might bear a grudge against 

him as he had recently fired some staff. In April 2003, 700 to 800 

workers had taken part in a strike. His deputy manager had told 

him that one staff member had warned the general managers and 

managers to be careful as they might get killed. He would pick up 

his family personally at the airport because he was concerned 

about their safety. 

DW2 gave evidence that he had never seen the Appellant 

with a gun. On 15 June, the Appellant asked him to investigate 

the incident. Two employees were suspected but no report was 

made to the Mainland police as the incident did not occur in the 

Mainland. 

The magistrate rejected the explanation of the Appellant. He 

was sure he had said something to PW1 at the airport, and that the 

Appellant was lying when he denied this. His evidence as to what 

occurred at this juncture was vague and he gave different versions. 

The Appellant was vague as to the packing of the hand baggage in 

which the gun was found. The magistrate drew the irresistible 

inference that the Appellant was aware that the gun was in his 

baggage. 

Held : 

On appeal

33 

(1) The magistrate had taken into account all the circumstances, 

including the inherent probabilities of the planting of the gun in 

the Appellant’s baggage. He was entitled to come to a conclusion 

on the facts which a court exercising appellate jurisdiction should 

not lightly disturb: HKSAR v Cheung Ho-ying [1993] 3 HKLRD 

45. There was no occasion to intervene on the basis of a lurking 

doubt; 

(2) The magistrate had not referred to s 24 of the Firearms and 

Ammunition Ordinance, Cap 238 which provided that: 

(1) Any person who is proved to have had in his 

physical possession – 

(a) anything containing arms or ammunition, or 

both; 

(b) the keys of any baggage, briefcase, box, case, 

cupboard, drawer, safe-deposit box, safe or 

other similar containers containing arms or 

ammunition, or both, 

shall, until the contrary is proved, be presumed to 

have had the arms or ammunition, or both, as the case 

may be, in his possession. 

(2) Any person who is proved or presumed to have 

had arms or ammunition, or both, in his possession 

shall, until the contrary is proved, be presumed to 

have known the nature of such arm or arms, or both, 

as the case may be. 

(3) The Respondent, in reliance upon R v Wu Man-choi [1979] 

HKLR 174, submitted that where the facts which gave rise to the 

presumption were established, as here, that presumption operated 

whether it was mentioned or not. However, the parties agreed in 

this case that since the magistrate had set himself the higher 

standard and approached the matter by way of an inference of 

guilt, and the issue here was the magistrate's rejection of the 

Appellant's evidence, the presumption was not a relevant factor 

upon appeal. 

Result - Appeal dismissed. 

香港特別行政區訴黃佩翰

34 

HKSAR v WONG Pui-hon 

高等法院原訟法庭 – 高院裁判法院上訴 2002 年第 1251 號 

* 盧淑玲及 

張潔宜 

Peggy Lo & 

Kathie 

Cheung 

# 車偉恆 

Allen Che 

高等法院原訟法庭法官彭鍵基 

耹訊日期 : 二零零三年四月十日 

宣判日期 : 二零零四年四月六日 

COURT OF FIRST INSTANCE OF THE HIGH COURT 

MAGISTRACY APPEAL NO. 1251 OF 2002 

在法定時間內沒有向警務人員提供車輛司機的資 

料 – 沒有責任提供最後駕駛車輛的司機的資料 – 第 

63(5) 段的辯護理由 

上訴人被票控違反了香港法例第 374 章《道路 

交通條例》第 63(1)(a) 條 , 即在法定時間內沒有向 

警務人員提供一輛私家車的司機資料。在裁判法院 

經審訊後 , 上訴人被裁定罪名成立 , 並被判罰款 

1000 元。 

在 2002 年 4 月 29 日 , 警方的一組車輛監察儀器 

拍下一輛私家車衝紅燈。警方根據該私家車的登記 

車主提供的資料在 2002 年 7 月 8 日 , 向上訴人寄出 

一份警方表格 , 要求他提供事發當日駕駛該私家車 

的司機資料。上訴人在收到該表格後 , 曾主動接觸 

有關的警方交通部 , 並在警方安排下到警署查閱事 

發當晚警方拍下的照片 , 但因為照片不能清楚顯示 

司機的樣貌 , 因此上訴人向警方聲稱不能再進一步 

提供當晚司機的身分。在 8 月 16 日上訴人給警方的 

信件中 , 上訴人稱因事發經已兩個多月 , 他不能記 

起當晚他有否駕駛該車。再者 , 他經查詢有關人仕 

後亦無法肯定誰是該車的司機 , 因此上訴人在表格 

中的資料欄內一律填寫了 ‘unknown’( 不詳 ) 的字 

眼。 

警方認為上訴人此舉等同不能在法定時間內提

35 

供事發當時司機的資料 , 因此便向上訴人提出檢 

控。 

審訊時上訴人選擇自辯 , 他根據法例第 63(5) 

段的辯護理由向法庭提出他不知道 , 並且經合理的 

努力後仍未能確定在該被指控罪行或意外發生時 , 

該車輛的司機姓名、地址及駕駛執照號碼。 

上訴人自辯時聲稱案中的有關車輛主要是由他 

本人駕駛 , 其餘部份時間是由他的妻子潘女士駕 

駛。他在接到警方通知書時 , 已不能記起事發當日 

誰是該車的司機。他亦曾向可能會駕駛該車的其他 

人仕包括他的妻子、司機和女兒查詢 , 但他們都不 

能提供確實的消息。上訴人又曾主動致電警方 , 並 

查閱事發時拍下的照片 , 但是照片未能清楚地拍下 

司機的容貌 , 因此上訴人聲稱他不能憑照片而提供 

司機的資料。 

裁判官曾向上訴人發問 , 而發問的重點是指稱 

上訴人有責任在表格內填上最後駕駛該車輛的司機 

的資料。裁判官先後三次指出即使上訴人不能肯定 

事發時司機的身分 , 他是可以或應該填寫最後駕駛 

該車輛司機的資料。 

最後裁判官裁定不信納上訴人聲稱在竭力回想 

及詢問下仍不能確定司機身分 , 並裁定上訴人罪名 

成立。 

裁決 : 

(1) 一般來說 , 審理上訴的法庭絕少干預原審裁判 

官就證人可信性的裁決 , 理由是裁判官在審訊的時 

候 , 他曾有機會直接觀察證人作供時神態後才下結 

論 ; 

(2) 裁判官的發問給人的印象是上訴人有責任填寫 

最後駕駛該車輛司機的資料 , 但第 63(1)(a) 條並沒 

有此規定。裁判官是錯誤理解了法律條文 , 並極有

36 

可能混淆了法例第 63(1)(a) 和 63(1)(b) 條文對被告 

人的要求 ; 

(3) 代表上訴人的律師在結案陳詞時 , 曾向裁判官 

指出法例 63(1)(a) 並無要求上訴人提供最後駕駛車 

輛司機的資料 , 但裁判官在他的簡單口述判案理由 

和稍後撰寫的事實裁斷書 , 都沒有澄清他為何曾數 

次向上訴人指出他有責任提供此等資料。由此看 

來 , 裁判官極可能混淆了控方需要證明的控罪元 

素 , 因而在法律上犯錯 ; 

(4) 上訴人定罪的裁決並不安全和穏當。 

結果 .. 上訴得直 , 發還已交罰款。 

[English digest 

of MA 1251/2002, 

above] 

Pang J 

(6.4.2004) 

*Peggy Lo & 

Kathie Cheung 

#Allen Che 

WONG 

Pui-hon 

Failure to give police officer information on driver of vehicle 

within statutory period/No obligation to give information on 

last driver of vehicle/Defence under s 63(5) 

A summons was issued on the Appellant for an offence 

under section 63(1)(a) of the Road Traffic Ordinance, Cap 374, 

namely, failing to give to a police officer information on the driver 

of a private car within a statutory period. The Appellant was 

convicted after trial in the magistrate’s court and was fined $1,000. 

On 29 April 2002, a private car was photographed for 

jumping red lights by the vehicle monitoring equipment set up by 

the police. Based on the information provided by the registered 

owner of the private car, the police sent a form to the Appellant by 

post on 8 July 2002, requiring identification of the driver of the 

private car on the day of the incident. Upon receipt of the form, 

the Appellant contacted the traffic section of the police. He was 

then asked to attend the police station to examine the photographs 

taken by the police on the night of the incident. However, the 

photographs did not show the physical appearance of the driver 

clearly, and the Appellant told the police that he could not make 

further identification of the driver that night. In his letter to the 

police dated 16 August, the Appellant stated that as more than two 

months had elapsed since the incident, he could not recall whether 

he drove the car that night. Furthermore, after making enquiries 

with persons concerned, he still could not ascertain who the driver 

was. Therefore he filled in the form by putting down the word 

‘unknown ’ for all the items requiring the provision of information.

37 

The police regarded the Appellant’s act as tantamount to 

failing to give information on the driver at the time of the incident 

within the statutory period and so brought a prosecution against 

him. 

At trial, the Appellant elected to give evidence for himself. 

He relied on the defence under s 63(5) and submitted that he did 

not know, and could not with reasonable diligence have 

ascertained, the name or address or driving licence number of the 

driver of the vehicle at the time of the alleged offence or accident. 

The Appellant in his own defence submitted that the vehicle 

concerned was driven by him most of the time and by his wife Ms 

Poon at other times. When he received a notice from the police, 

he could not recall who drove the vehicle on the day of the 

incident. He had made enquiries with other persons who might 

have driven the vehicle, including his wife, his driver and his 

daughter, but none of them was able to provide a positive answer. 

The Appellant also took the initiative to call the police and 

examine the photographs taken at the time of the incident. But 

since the photographs did not show the facial appearance of the 

driver clearly, the Appellant claimed that he could not identify the 

driver merely by the photographs. 

The magistrate asked the Appellant a number of questions. 

They were focused on the Appellant’s obligation to complete the 

form by giving information on the last driver. The magistrate had 

altogether pointed out three times that even if the Appellant could 

not have ascertained the identity of the driver at the time of the 

incident, he could have or should have given information on the 

last driver of the vehicle. 

Finally, the magistrate ruled that he would not accept the 

Appellant’s submission that the driver’s identity could not be 

ascertained despite the Appellant’s efforts to recall and to make 

enquiries, and he convicted the Appellant accordingly. 

Held : 

(1) Generally, it was rare for an appellate court to interfere with 

a trial magistrate’s ruling on the credibility of a witness. The 

reason was that a trial magistrate, before arriving at a conclusion, 

had the opportunity to observe directly the demeanour of a witness 

when he testified; 

(2) The questions put forward by the magistrate gave the 

impression that the Appellant had the obligation to give

38 

information on the last driver in the form. However, this was not 

required by s 63(1)(a). The magistrate misunderstood the statutory 

provisions and had very likely confused the different requirements 

on a defendant under s 63(1)(a) and s 63(1)(b); 

(3) In his closing speech, counsel representing the Appellant 

submitted to the magistrate that the Appellant was not required by 

s 63(1)(a) to give information on the last driver. However, the 

magistrate had not, both in his brief oral Reasons for Verdict and 

in his subsequent written Statement of Findings, clarified why he 

repeatedly pointed out that there was an obligation on the 

Appellant to give such information. It was very likely that the 

magistrate had confused the elements of offence which the 

prosecution had to prove and therefore had erred in law; 

(4) The conviction was unsafe and unsatisfactory. 

Result - Appeal allowed. Fine refunded.

39 

E. MAGISTRACY APPEALS/ 

AGAINST SENTENCE 

裁判法院上訴案件 / 針對刑罰 

MA 110/2004 

Beeson J 

(21.5.2004) 

*Leung Sun-yee 

#Joseph Tse 

NGAI 

Wing-keung 

Possession of obscene articles for publication/Imprisonment 

and fine imposed/Imprisonment in default of payment of fine/ 

Enquiry as to source of bail money different from enquiry as 

to means to pay fine/Inquiries as to capacity essential/ 

Defendant wrongly punished for refusing to use bail money to 

pay fine 

管有淫褻物品以供發布之用 – 處以監禁及罰款 – 因 

欠繳罰款而判處監禁 – 對保釋金來源的查問與對 

支付罰款的經濟能力的查問不同 – 查問支付罰款 

的能力屬必須 – 被告人因拒絕以保釋金支付罰款 

而遭錯誤處罰 

The Appellant pleaded guilty to an offence of possession of 

obscene articles for the purpose of publication, contrary to 

s 21(1)(b) of the Control of Obscene and Indecent Articles 

Ordinance, Cap 390. He was sentenced to 10 months’ 

imprisonment, and fined $20,000, and ordered to serve 3 months’ 

imprisonment, consecutive, in default of payment of the fine. 

In his Reasons for Sentence, the magistrate noted that the 

Appellant has been in possession of 4,267 obscene discs, at what 

was described as a ‘notorious location’ for this type of offence. 

The Appellant, aged 51, had 31 previous convictions, including 4 

for similar offences, and was in breach of a suspended sentence 

imposed four months earlier for a similar offence. The magistrate 

considered a higher starting point for sentence was appropriate 

because of the Appellant’s disregard for the law and took 15 

months as the starting point. He then stated: 

I was also satisfied that an additional penalty should 

be imposed. I heard evidence regarding the 

defendant’s ability to pay a fine and was satisfied 

beyond reasonable doubt that the bail money was 

available to the defendant to dispose of. 

The magistrate noted that the Appellant had been convicted 

repeatedly in the past three years. In September 2003, he had been 

fined a total of $5,000, and given a sentence of 6 months 

suspended for 12 months for two similar offences. He considered 

imprisonment was appropriate, and that on this occasion a larger 

fine was also appropriate.

40 

When the magistrate asked defence counsel if he had any 

instructions as to whether a fine could be paid from the bail 

money, he replied that the Appellant could not pay the fine from 

the bail money as it had been borrowed from a relative and the 

Appellant wanted the bail money returned to his younger brother. 

The magistrate, however, was not prepared to accept that 

information, so the Appellant gave evidence. He said that he had 

obtained $25,000 from his younger brother to meet the bail. The 

arrangement was that he would repay the money to his brother 

once the case was finished. The younger brother also testified, 

and he confirmed that he had borrowed $25,000 from a friend in 

order to provide the Appellant with the bail money he required. 

He told the magistrate he had not told his friend why he wanted 

the money, but just that it was needed urgently and he would 

return the money within several days. 

The magistrate did not accept that the money was borrowed 

on a promise that it would be repaid. He also did not believe 

either the Appellant or his brother and opined that anyone who 

was willing to put up $25,000 would certainly want to know what 

was being done with the money, particularly if the person 

borrowing the money had no great means himself. He was 

satisfied that the money was given to the Appellant for his bail 

without any strings attached. On that basis, he was satisfied 

beyond reasonable doubt that the bail money was available to the 

Appellant to dispose of as he wished. The magistrate then told the 

Appellant: 

You are now sentenced to 10 months’ imprisonment 

and a fine of $20,000. The fine is payable forthwith if 

you do not pay that forthwith, you will serve an 

additional 3 months’ imprisonment - 3 months 

consecutive to the 10 months. 

The Appellant told the magistrate he would not pay the fine 

from the bail money, but would give it to his younger brother. The 

3 months’ sentence in default of payment was activated. The 

magistrate also activated the suspended sentence, but keeping 

totality in mind made 2 months’ of that 6 months’ sentence 

concurrent with the present sentence, making 17 months in total. 

On appeal, complaint was made of the fine and of the 

imprisonment in default of payment. It was submitted, first, that 

the magistrate erred in imposing a default order of 3 months’ 

imprisonment for non-payment of the fine of $20,000, as the 

magistrate’s enquiry as to the means of the Appellant to pay a fine 

was not supported by evidence adduced in the enquiry. Further, 

there was no evidence adduced in the enquiry by the prosecution 

to prove the means of the Appellant, or to contradict evidence

41 

adduced by the Appellant as to his means. Second, it was said that 

in all the circumstances the fine and the default order of 

imprisonment were manifestly excessive and wrong in principle. 

Held : 

(1) An examination by the magistrate of the circumstances 

under which the bail money was obtained and whether he was able 

to, or wished to, use it to pay a fine was not necessarily the same 

as an enquiry as to a defendant’s ability to pay a fine; 

(2) No information was given by the defence counsel in 

mitigation as to the Appellant’s ability to pay the fine. The 

magistrate did not ask any questions as to means, but immediately 

seized on the bail money as a possible way of paying the fine. The 

Appellant said he borrowed the money from his brother and did 

not want to use that money for paying the fine; 

(3) The magistrate should have made enquiries as to the 

financial circumstances of the Appellant generally and considered 

(a) whether or not a fine of $20,000 was appropriate; (b) whether 

or not the Appellant was able to pay it, and (c) if so, how long it 

would take him to pay it. Although the Appellant was a repeat 

offender, there was no evidence before the court to show he had 

profited in any way, except as an employee from the venture for 

which he was arrested; 

(4) A magistrate should decide whether a fine was appropriate 

in the circumstances of the case and, if so, what the amount should 

be. That might involve some enquiries of a defendant in person, 

or submissions from counsel if represented, as to a defendant’s 

means and ability to pay a fine. If a defendant agreed, money for 

the whole or part of a fine could be taken from the bail money; 

(5) If a defendant declined to use bail money because, as in this 

case, it was borrowed, or was to be used for some other purposes, 

enquiries should be made as to whether or not time was needed, or 

should be given, for payment. The magistrate’s enquiry focused 

solely on whether or not the bail money was the Appellant’s to 

dispose of as he wished, rather than his ability to meet a fine; 

(6) Having decided that the bail money was the Appellant’s to 

dispose of, it appeared that the magistrate was annoyed by his 

continued refusal to use the bail money to pay the fine. This 

resulted in the additional, immediate 3 months’ imprisonment in 

default of payment. That was wrong in principle, because it must 

have appeared to the Appellant that he was being punished with 3 

months’ imprisonment for refusing to use his bail money to pay 

the fine, rather than being fined as a deterrent linked to his

42 

offence; 

(7) In the circumstances of the case it was not appropriate for 

the magistrate to impose a fine in addition to a sentence of 

imprisonment. 

Result - Appeal allowed. Fine of $20,000 revoked, and sentence 

of 3 months’ imprisonment in default of payment 

quashed. 

MA 169/2004 

Gall J 

(17.3.2004) 

*Sin Pui-ha 

#I/P 

CHOW 

Yuk-leung 

Smuggling/Goods hidden in lorry/Lorry rented by owner to 

third party/Owner alert to possible misuse of lorry/Forfeiture 

order appropriate 

走私 – 貨品藏在貨車上 – 貨車由車主租予第三 

者 – 車主對不當使用貨車的可能性有警覺 – 沒收 

令恰當 

On 29 July 2003, a lorry, reg. no. EZ 5135, arrived at Sha 

Tau Kok control point for customs clearance. The driver, Mr 

Chan Kok-ming, tendered a manifest that declared the vehicle 

empty. The vehicle underwent an examination. During the search 

of the vehicle a secret compartment was discovered in the roof of 

the cargo compartment of the vehicle and a total of 550 computer 

hard disks in custom-made trays was found. The defendant was 

convicted of a customs offence, and the Customs and Excise 

Department applied for forfeiture of the vehicle and keys. 

The application for forfeiture was contested before the 

magistrate by the Appellant. He was the owner of the vehicle and 

had driven it to the Mainland himself. He wished to buy another 

vehicle and borrowed money to buy one. He could not sell 

EZ 5135 so he decided to lease it to a Mr Lam in early June, for 

$5,000 per month. The magistrate heard the evidence of the 

Appellant, and said: 

The leasing arrangement was very informal. There 

was no documentation produced. The claimant clearly 

retained all rights and responsibilities of the owner, 

one of which is to ensure the vehicle is not used 

illicitly … 

The magistrate ordered the forfeiture of the lorry, and its 

ignition key. 

On appeal

43 

Held : 

(1) The law was as set out in R v CEC Finance Ltd [1993] 1 

HKC 127, 131. Bokhary JA said: 

The discretion to order forfeiture being unfettered, the 

question whether or not to so order is to be approached 

from a neutral starting point, with both parties on a 

level playing field, so to speak, and each with the onus 

of proving on a balance of probabilities any fact which 

he or it asserts if that fact is not admitted by the 

opposite party. That is how the question is to be 

approached. And it is to be answered by reference to 

what is just in all the circumstances as the magistrate 

finds such circumstances proved or admitted. 

(2) The magistrate found that, as claimant, the Appellant 

retained all rights and responsibilities of the owner, that he knew 

cross-border trade and that the illicit use of the vehicle was a real 

possibility. He found that the Appellant introduced the driver to 

Mr Lam and that he had at no time since renting the vehicle 

checked or inspected it; 

(3) The approach of the magistrate could not be faulted. 

Result - Appeal dismissed.

44 

F. COSTS IN CRIMINAL CASES 

刑事案件的訟費 

MA 922/2003 

Gall J 

(16.3.2004) 

*Lynda Shine 

#K Oderberg 

HAU 

Kai-hung 

Defendant charged with criminal offence/Charge withdrawn/ 

Defendant not bringing suspicion upon herself/Costs wrongly 

refused 

被告人被控以刑事罪行 – 控罪撤回 – 被告人並非 

自招懷疑 – 錯誤拒絕判給訟費 

The Appellant was charged on 14 April 2003 with an 

offence of possession of equipment for making a false instrument. 

The charge related to premises in Hunghom, where police found a 

number of machines, encoding machines, rolls of tin foil and 

pieces of white plastic cards from which cards could be made and 

two note books containing credit card data information. The 

charge related to the intention to use that equipment to create false 

credit cards, using the data from real credit cards so as to pass off 

the false cards as genuine. 

The Appellant testified that the premises in question had 

been rented to her, and sub-let to her co-accused, Lo. The 

Appellant, after arrest, made a post-record of a statement to the 

police in which she said ‘That unit is rented by me. I let my friend 

live there ’. Her first reaction to the police was that she had no 

connection with the premises. When further questioned, the 

Appellant failed to reveal who the sub-tenant was or any details 

about him. 

The Appellant was charged on the basis that she was the 

tenant of the premises, that she was known to her co-accused, and 

her admission that she had let the premises to Lo. 

On 28 July 2003, the prosecution amended the charge by 

deleting the name of the Appellant and withdrawing the charge 

against her. She then made an application to the magistrate for an 

award of costs. 

Section 3 of the Costs in Criminal Cases Ordinance, 

Cap 492, read: 

3. Defence costs in summary proceedings 

(1) Where- 

(a) an information or complaint laid before a 

magistrate is proceeded with; 

(b) the magistrate may order that costs be 

awarded to the defendant.

45 

The magistrate refused to award costs. He recognised that 

costs should follow the event unless the defendant was in some 

way at fault in one of the following situations: (1) the defendant 

brought suspicion upon himself, (2) the defendant misled the 

prosecution into thinking the case was stronger than it was, or 

(3) the defendant was acquitted on a technicality despite ample 

evidence to support a conviction. In refusing costs, the magistrate 

said: 

Held : 

In my view, a person who has lent her name to rent a 

flat and then subsequently let others occupy it on a 

causal basis has acted in her own peril: even giving 

credence to the most innocent explanation, Ms Hau 

has acted in a careless or even reckless manner and 

had brought suspicion upon herself. On this basis I 

rejected her application for costs. 

On appeal 

(1) It could not be true that a person who allowed someone else 

to occupy premises to which they had a right was inevitably 

bringing suspicion upon themselves; 

(2) The difficult issue was that the Appellant had a right to 

silence. On the one hand, according to the Respondent’s 

submission, she had an obligation, if she was to avoid being 

refused costs, to be as helpful as possible on matters not going 

directly to her own position, but, on the other hand, she had a right 

to preserve her position by not answering the police questions. 

Although the Appellant did not co-operate as fully with the police 

as they would have liked, nothing she did or said, and none of her 

actions, brought suspicion upon herself; 

(3) The magistrate was in error in finding that the Appellant had 

brought suspicion upon herself. 

Result - Appeal allowed. Costs awarded.

46 

G. PRACTICE AND PROCEDURE 

常規與程序 

CA 542/2002 

Stock JA 

Gall & 

Beeson JJ 

(21.6.2004) 

*D G Saw SC & 

Peggy Lo 

#J Haynes 

LI 

Suet-ping 

Prosecuting counsel/Improper expression to jury of personal 

opinion/Counsel’s role that of an advocate for a case/Judge to 

correct improper comment 

控方律師 – 向陪審團發表個人意見屬不當 – 律師 

的職責是作為案件的代訟人 – 法官應更正不恰當 

的評論 

Having dismissed the application for leave to appeal against 

a conviction for murder, the court commented upon an aspect of 

prosecuting counsel’s address to the jury. 

In the course of the address to the jury, and after rehearsing 

the Applicant’s account about how her husband chased her into the 

kitchen after he had been burnt with oil and a discussion they were 

meant to have had, according to the Applicant, of meeting in the 

after-life, counsel said ‘To me, members of the jury, and I’m sure 

it is to you, it’s just total nonsense ’. 

The Court observed: 

This was an improper remark. Counsel should never 

express a personal opinion of this kind. This is not his 

or her job. Counsel’s job is that of an advocate for a 

case, and not as a proponent of his or her own views; 

most particularly not before a jury. Nor should a 

judge permit such advocacy to pass without comment.

刑事檢控科各律師/高級律 - Department of Justice

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